Gun control: Federal court guts California’s concealed-carry rules

02/13/2014

SAN FRANCISCO — People seeking permits to carry concealed weapons don’t have to prove “good cause” beyond truthfully saying they want to be able to defend themselves, a divided federal appeals court ruled Thursday.

The 2-1 ruling by the 9th U.S. Circuit Court of Appeals in a San Diego case isn’t yet final — the county and its sheriff might appeal — but if it stands, “California will join the vast majority of other states that now issue permits to people for self-defense,” said Chuck Michel, attorney for the California Rifle and Pistol Association.

Jan Caldwell, spokesman for the San Diego Sheriff’s Department, said Thursday her agency had not yet had a chance to fully review the ruling.

California generally prohibits people from carrying handguns in public openly or concealed, loaded or unloaded, but people can apply for permits from sheriffs or police chiefs to carry concealed, loaded weapons. By state law, requirements for such a permit include demonstrating “good moral character,” taking a training course and establishing “good cause.”

It’s up to counties and cities to set policies for seeking such permits, and this lawsuit — filed by several San Diego residents and Michel’s organization — challenged San Diego’s interpretation of “good cause.” The county’s policy required “a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way,” something that would be evaluated on an individual basis. But concern for “one’s personal safety alone is not considered good cause,” the policy said.

The San Diego Sheriff’s Department has required applicants to provide documentation — such as restraining orders, letters from law enforcement or prosecutors, and so on — to prove a special need for self-protection.

A federal district judge had ruled that’s OK in order to protect public safety, but the 9th Circuit reversed that ruling, finding the county’s policy “impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.”

“Any other county or city… that adopts a similar ‘special need’ policy, which is most notably going to be Los Angeles and San Francisco, that policy is unconstitutional,” Michel said Thursday. “If people make a legitimate and truthful assertion that they want a permit for self-defense, they have to get one if they meet the other requirements.”

Most Bay Area counties have policies similar to San Diego’s. Alameda County, for example, requires an applicant to show “a documented, presently existing, clear and present danger to life, or great bodily harm” specific to the applicant or that person’s immediate family. The applicant also must show that police or alternative measures can’t adequately address that danger, and that issuing a permit is likely to significantly reduce the danger of harm.

Among those anxiously awaiting the San Diego’s case’s outcome is Tom Scocca of San Jose, who sought a concealed-carry permit in 2008 but was turned down by Santa Clara County Sheriff Laurie Smith after he could not show “good cause.”

The former law enforcement officer who now heads up global security at a major Silicon Valley tech company sued Smith, saying her denial was unconstitutional especially when others with similar backgrounds in the county had received permits. His case had been put on holding pending the 9th Circuit’s ruling in the San Diego case.

Scocca said Thursday’s ruling had him “checking the calendar to see if it was April Fool’s Day,”‘ because “no one really expected an opinion of that type out of the 9th Circuit.” He’s said he’s guardedly optimistic that the decision will stick even if appealed.

“It’s very clear that the Second Amendment right to bear arms in this state is a valid right under the U.S. Constitution,” Scocca said. “And an individual sheriff’s ability to restrict that with a nebulous ‘good cause’ requirement is not lawful.”

Circuit judges Diarmuid O’Scannlain and Consuelo Callahan concurred in the ruling while Sidney Thomas penned a scathing dissent, writing San Diego’s policy falls squarely within what the Supreme Court has called “presumptively lawful regulatory measures.”

“In dealing a needless, sweeping judicial blow to the public safety discretion invested in local law enforcement officers and to California’s carefully constructed firearm regulatory scheme, the majority opinion conflicts with Supreme Court authority, the decisions of our sister circuits, and our own circuit precedent,” Thomas wrote.

San Diego could seek “en banc” review by a larger, 11-judge panel of the 9th Circuit appeals court. And if that is denied, or if either side chooses to appeal the larger panel’s ruling, the case could go to the U.S. Supreme Court.

Michel said the case may be ripe for the high court’s review: Though the 7th Circuit appeals court has ruled similarly to this, three other circuits have ruled differently, setting up a conflict. The Supreme Court ruled in 2008 that law-abiding citizens can keep handguns in the home for self-defense, but didn’t determine whether that right extends outside the home.

Two California congressman — Doug LaMalfa, R-Oroville, and John Campbell, R-Irvine — were among 34 GOP lawmakers who signed a brief this week urging the high court to take up a case in which New Jersey’s restrictions on carry permits were upheld.